Case Number: 19STCV13312 Hearing Date: September 10, 2019 Dept: 40

MOVING PARTY: Defendant Delta Air Lines Inc. and Herny Chwa

OPPOSITION: Plaintiff Edgard K. Davila

Plaintiff Edgard K. Davila sues his employer Delta Air Lines Inc.(“Delta”) and his supervisor Herny Chwa (“Chwa”) (collectively, “Defendants”). Plaintiff has been employed by Delta since 2015, he is an army reservist and served in Iraq from 2016 to 2017. Upon Plaintiff’s return from Iraq, Chwa was his supervisor at Delta. Plaintiff alleges that he has applied to be promoted numerous times but Chwa has refused to promote him. Plaintiff alleges that Chwa has refused to promote him because as part of the army reserve he must take time off from work to perform his duties.

On June 14, 2019, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendants, alleging causes of action for:

1) Discrimination based on membership in military services (Mil. & Vet. code § 394);

2) Discrimination based on military and veteran status (Gov. code §12940, et seq.);

3) Harassment (Gov. code §§ 12940(a) and 12940(j)(1);

4) Retaliation (Gov. code §12940, et seq.);

5) Failure to take reasonable steps to prevent discrimination and harassment (Gov. code §12940 (k).

On August 15, 2019, Defendants filed the instant demurrer as to the Third and Fourth causes of action.

CRC Rule 3.1320(a): Plaintiff argues that the demurrer should be overruled because it fails to follow CRC Rule 3.1320(a), which states that “[e]ach ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.” It is true that Defendants’ demurrer lists the grounds for the motion in a single paragraph rather than in separate paragraphs. However, the Court will not overrule the motion on that ground as there is no actual prejudice to Plaintiff.

Third Cause of Action, Harassment: SUSTAINED

Plaintiff’s harassment claim is based on him not being promoted on three separate occasions and comments made by Chwa. Plaintiff unsuccesfully applied for a promotion in early 2017, late 2017, and late 2018. (FAC, ¶¶ 14-17.) In 2017, Plaintiff asked Chwa why he had not been promoted. Chwa stated that transfers had priority and that he would speak with the regional manager to see what he could do. Plaintiff alleges that Chwa failed to speak with the regional manager. On another occasion, Chwa informed him that he did not receive a promotion because he “lacked commitment” and that he expected more from him. (FAC, ¶ 19.) At some point, Chwa stated that the fact that members of the military take a leaves from work caused an “operational problem”. (FAC, ¶ 15.)

Harassment consists of “conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” Reno v. Baird (1998) 18 Cal.4th 640, 645–646. To establish harassment in violation of the FEHA, a plaintiff must “show [they were] subjected to… conduct or comments that were (1) unwelcome; (2) because of [a protected characteristic]; and (3) sufficiently severe or pervasive to alter the conditions of [their] employment and create an abusive work environment. Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279 (internal citations omitted.) “In determining what constitutes ‘sufficiently pervasive’ harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610.

Plaintiff correctly notes that official employment actions can support a theory of harassment. Roby v. McKesson Corp (2009) 47 Cal. 4th 686, 708. However, in Roby the supervisor’s personnel actions included the “shunning of Roby during staff meetings, [the supervisor’s] belittling of Roby’s job, and [the supervisor’s] reprimands of Roby in front of Roby’s coworkers.” (Id. at 709.) In this case only a personnel action, the failure to promote, is alleged. Chwa’s purported statements are not severe and did not occur pervasively.

Fourth Cause of Action, Retaliation (Gov. Code § 12940, et seq.): SUSTAINED

To establish a prima facie case of retaliation, a plaintiff must show (1) he engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employer’s action. Akers v. County of San Diego (2002) 95 Cal. App. 4th 1441, 1453.

The following are protected activities. It is an “unlawful employment practice” under FEHA “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code, § 12940, subd. (h).) Opposing practices forbidden by FEHA includes “seeking the advice of the DFEH or FEHC; assisting or advising any person in seeking the advice of the DFEH or FEHC; opposing employment practices the employee reasonably believes to exist and believes to be a violation of FEHA; participating in an activity perceived by the employer as opposition to discrimination; or contacting, communicating with, or participating in the proceeding of a local human rights or civil rights agency regarding employment discrimination.” Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 380.

It is also unlawful for an employer to retaliate against an employee for requesting a disability accommodation. (Gov. Code § 12940(m)(2).) Finally, it is also unlawful for an employer to retaliate against an employee for requesting a religious accommodation. (Gov. Code § 12940(l)(4).)

Defendants argue that Plaintiff’s alleged protected activity is not a protected activity under the statute. Plaintiff states that he engaged in a protected activity “every time he took time off to perform his military service as an army reservist.” Plaintiff is not alleging that he took part in an investigation, requested a disability accommodation, or a religious accommodation. Therefore, Plaintiff’s stated activity would have to fall under “practices forbidden” by FEHA to qualify as a protected activity.

As discussed by Defendants, before a 2015 amendment, case law held that a request for a disability accommodation was not a protected activity. See Rope v. Auto–Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635. The 2015 amendments to the statute specifically added requesting religious and disability accommodations as protected activities.

The Court finds that Plaintiff’s purported protected activity, requesting military leave, is not enumerated as a protected activity under the statute.

Conclusion: Defendants’ Demurrers to the Third and Fourth cause of action are SUSTAINED, and Defendants to give notice.